Citation Nr: 0431500
Decision Date: 11/29/04 Archive Date: 12/08/04
DOCKET NO. 03-19 799 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for an eye disability,
to include as secondary to service-connected type-2 diabetes
mellitus.
2. Entitlement to a compensable initial evaluation for
service-connected bilateral hearing loss.
REPRESENTATION
Appellant represented by: Tennessee Department of
Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Moore, Associate Counsel
INTRODUCTION
The veteran had active service from March 1964 to February
1966. He served in Vietnam from October 4, 1965 to February
20, 1966.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from April 2002 and June 2003 rating decisions of
the Regional Office (RO).
The Board observes that the veteran's September 2002 Notice
of Disagreement included the issue of entitlement to service
connection for hearing loss. A Decision Review Officer
(DRO), in a June 2003 decision, granted service connection
for hearing loss and assigned a noncompensable evaluation,
effective January 7, 2002. Subsequently, in an October 2003
deferred rating decision, the RO indicated that it had
accepted the veteran's July 2003 substantive appeal including
as a Notice of Disagreement with the evaluation assigned in
the June 2003 DRO rating decision. The RO sent the veteran a
Statement of the Case on the issue of an increased initial
evaluation for hearing loss disability in January 2004. The
veteran's representative's statement received in April 2004,
refers to the severity of the veteran's hearing loss and is
accepted as a substantive appeal on the issue.
FINDINGS OF FACT
1. An eye disability was initially demonstrated years after
service, and has not been shown by competent evidence to be
causally related to the veteran's active service, to include
exposure to herbicides, nor shown by competent evidence to be
the result of, or chronically aggravated by, service-
connected type-2 diabetes mellitus.
2. The veteran has Level I hearing in the right ear and the
left ear.
CONCLUSIONS OF LAW
1. An eye disability was not incurred in, or aggravated by,
active service, nor may an eye disability be presumed to have
been so incurred due to exposure to herbicides. 38 U.S.C.A.
§§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307,
3.309 (2003).
2. An eye disability is not proximately due to, or
chronically aggravated by, service-connected diabetes
mellitus. 38 C.F.R. § 3.310 (2003); Allen v. Brown, 7 Vet.
App. 439 (1995).
3. The criteria for a compensable evaluation for bilateral
hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, 5106, 5106, 5107, 5126 (West 2002)).
This law eliminates the concept of a well-grounded claim, and
redefines the obligations of the Department of Veterans
Affairs (VA) with respect to the duties to notify and to
assist claimants in the development of their claims. First,
the VA has a duty to notify the appellant and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim for VA
benefits, as well as the development responsibilities of the
claimant and of the VA. VCAA, § 3(a), 114 Stat. 2096, 2096-
97 (2000). See 38 U.S.C.A. §§ 5102 and 5103 (West 2002). VA
will also request that the claimant provide any evidence in
their possession that pertains to the claim. 38 C.F.R.
§ 3.159(b) (2003). Second, the VA has a duty to assist the
appellant in obtaining evidence necessary to substantiate the
claim. VCAA, § 3(a), 114 Stat. 2096, 2097-98 (2000). See 38
U.S.C.A. § 5103A (2002).
Notice
With respect to the claim for service connection for an eye
disability, a February 2002 VCAA notice letter apprised the
veteran of the evidence necessary to substantiate his claim,
as well as his and VA's development responsibilities. He was
also advised to send any evidence in his possession,
pertinent to the appeal, to VA. As such, VA's duty to notify
has been met. See Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002); 38 U.S.C.A. § 5103, 38 C.F.R. § 3.159 (2003).
The Board notes that as the increased rating claim for
bilateral hearing loss stems from a July 2003 Notice of
Disagreement with a June 2003 RO decision which granted
service connection for hearing loss disability, the VA is not
required to provide VCAA notice. VAOPGCPREC 8-2003. In
this regard, the Board notes that § 5103 notice was provided
in February 2002 relative to the claim for service connection
for hearing loss, prior to the June 2003 initial
adjudication.
The United States Court of Appeals for Veteran Claims'
(Court's) decision in Pelegrini v. Principi, No. 01-944 (U.S.
Vet. App. June 24, 2004), held, in part, that a VCAA notice,
as required by 38 U.S.C. § 5103(a), must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits. In
the present case, because the February 2002 VCAA notice was
provided to the appellant prior to the April 2002 initial AOJ
adjudication denying the claim for service connection for an
eye disability, the timing of the notice does comply with the
express requirements of the law as found by the Court in
Pelegrini II.
The Court in Pelegrini II also held, in part, that a VCAA
notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. This new "fourth element" of
the notice requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1). See VAOPGCPREC 01-2004. The Board has found
that the appellant was provided every opportunity to identify
and submit evidence in support of his claim to reopen.
Duty to assist
With regard to the duty to assist, the record contains the
veteran's service medical records, a private medical record,
as well as a VA examination report. The veteran has been
afforded the opportunity for a personal hearing on appeal.
The Board has carefully reviewed the veteran's statements and
concludes that he has not identified any further evidence not
already of record. The Board has also perused the medical
records for references to additional treatment reports not of
record, but has found nothing to suggest that there is any
outstanding evidence with respect to the veteran's claim.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the veteran in developing the facts
pertinent to his claims. Essentially, all available evidence
that could substantiate the claims has been obtained.
Factual Background
The veteran's service medical records, including the report
of his February 1966 separation examination, are silent as to
any complaints of or treatment for defective vision. His
distant vision was 20/20 in each eye on separation
examination in February 1966.
The veteran's DD 214 indicates that he was trained as a rifle
sharpshooter.
In a letter dated in November 1999, a private physician
indicated that the veteran had been referred to her for a
diabetic eye evaluation. She reported that his past ocular
history was significant for what sounded like toxoplasmosis
of the right macula. On examination, the physician noted
that his best visual acuity was 20/400 on the right eye and
20/20 on the left eye. She further indicated that the fundus
examination did not reveal any diabetic retinopathy and that
a large pigmented macular scar accounted for his decreased
vision.
The veteran underwent audiological testing at a private
facility in January 2002. The examiner reported that an
audiogram revealed right greater than left high frequency
sensorineural hearing loss that was consistent with noise
trauma. The reported speech discrimination score was 96
percent in the right ear and 100 percent in the left ear.
The examiner diagnosed the veteran with sensorineural hearing
loss and indicated that the veteran was in need of a hearing
aid evaluation.
The veteran underwent a VA audiological examination in May
2003. He reported decreased hearing, right ear greater than
left ear, with difficulty understanding in crowds and with
background noise. He also reported that he could not hear
his cell phone when he was in public. On audiometric
examination, the reported pure tone thresholds, in decibels,
were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
15
40
85
80
LEFT
15
30
55
55
Speech audiometry revealed speech recognition ability of 100
percent in the right ear and of 100 percent in the left ear.
The examiner diagnosed the veteran with moderate
sensorineural hearing loss in the right ear and mild
sensorineural hearing loss in the left ear.
In a statement dated in September 2003, the veteran's
representative indicated that, "the veteran is contending
that his eye condition is due to acoustic trauma as a result
of his involvement in artillery during his tour in the
Republic of Vietnam."
The veteran was seen at a VA medical facility in May, July
and October 2003 when he was issued hearing aids.
In a transcript of the veteran's July 2004 Travel Board
hearing, the veteran related that he did not attribute his
eye condition to his service-connected diabetes disability,
but rather to a concussion that he received from being
exposed to the firing of artillery in close proximity to his
eyes, particularly his right eye. He also indicated that he
had experienced eye problems since around the time of his
hearing loss and before he was diagnosed with diabetes.
Criteria
1. Direct Service Connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R.
§§ 3.303, 3.304 (2003).
Present disability resulting from disease or injury in
service is required to establish entitlement to service
connection. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir.
1997). To establish service connection for a disability,
there must be competent evidence of a current disability
(medical diagnosis), of incurrence or aggravation of a
disease or injury in service (lay or medical evidence), and
of a nexus between the in-service injury or disease and the
current disability (medical evidence). Caluza v. Brown, 7
Vet. App. 498, 507 (1995).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d)(2003).
A veteran who served in the Republic of Vietnam, during the
period from January 9, 1962 and ending on May 7, 1975, is
presumed to have been exposed to herbicides during such
service. 38 C.F.R. § 3.307(a)(6) (2003).
If a veteran was exposed to an herbicide agent during active
service, the diseases listed at 38 C.F.R. § 3.309(e) shall be
service connected even though there was no record of such
disease during service, provided further that the rebuttable
presumption provisions of 38 C.F.R. § 3.307(d) are also
satisfied.
2. Secondary Service Connection
Secondary service connection may be granted for a disability,
which is proximately due to, or the result of an established
service-connected disorder. 38 C.F.R. § 3.310 (2003).
Secondary service connection includes instances in which an
established service-connected disorder results in additional
disability of another condition by means of aggravation.
Allen v. Brown, 7 Vet. App. 439 (1995).
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability
exists and (2) that the current disability was either caused
or aggravated by a service-connected disability. Allen v.
Brown, 7 Vet. App. 439, 488 (1995).
3. Increased Rating
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings, which
is based on average impairment of earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes
identify the various disabilities. The VA has a duty to
acknowledge and consider all regulations, which are
potentially applicable through the assertions and issues
raised in the record, and to explain the reasons and bases
for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although
the regulations do not give past medical reports precedence
over current findings, the Board is to consider the veteran's
medical history in determining the applicability of a higher
rating for the entire period in which the appeal has been
pending. Id.; Powell v. West, 13 Vet. App. 31, 34 (1999).
As the veteran takes issue with the initial rating assigned
when service connection was granted for bilateral hearing
loss, the Board must evaluate the relevant evidence since the
effective date of the award; it may assign separate ratings
for separate periods of time based on facts found - a
practice known as "staged" ratings. Fenderson v. West, 12
Vet. App. 119 (1999).
The assignment of disability ratings for service-connected
hearing impairment is derived by mechanical application of
the rating schedule to the numeric designations assigned
after audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992).
The severity of hearing loss disability is determined for VA
rating purposes by the application of criteria set forth in
38 C.F.R. § 4.87 of VA's Schedule for Rating Disabilities.
Under, these criteria, evaluations of bilateral defective
hearing range from noncompensable to 100 percent based on
organic impairment of hearing acuity as measured by the
results of controlled speech discrimination tests together
with the average pure tone threshold level as measured by
pure tone audiometry tests in the frequencies of 1,000,
2,000, 3,000 and 4,000 Hertz. The degree of disability for
bilateral service-connected defective hearing is ascertained
by the application of the rating schedule, which establishes
11 auditory acuity levels, ranging from Level I (for
essentially normal acuity) through Level XI (for profound
deafness). See 38 C.F.R. § 4.85, Diagnostic Code 6100.
In addition, 38 C.F.R. § 4.86 (2003) applies to exceptional
patterns of hearing impairment. Under its provisions, when
the puretone threshold at each of the four specified
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels
or more, the rating specialist will determine the Roman
Numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
Each ear will be evaluated separately. When the puretone
threshold is 30 decibels or less at 1000 Hertz, and 70
decibels or more at 2000 Hertz, the rating specialist will
determine the Roman numeral designation for hearing
impairment from either Table VI or Table VIa, whichever
results in the higher numeral. That numeral will then be
elevated to the next higher Roman numeral. Each ear will be
evaluated separately. 38 C.F.R. § 4.86.
Analysis
1. Direct Service Connection-Eye Disability
The veteran asserts that service connection is warranted for
an eye disability, to include as secondary to service-
connected type-2 diabetes mellitus. In this regard, in order
to establish service connection on a direct basis, the
veteran must provide evidence of a current disability, and
in-service injury or disease, and a nexus between the current
disability and in-service injury or disease. The Board notes
that the evidence of record indicates that the veteran has
current 20/20 vision in the left eye, with no diabetic
retinopathy or other left eye disability. In the absence of
demonstration of a current left eye disability, the
preponderance of the evidence is against the claim for
service connection for a left eye disability. While the
record demonstrates current decreased vision of the right eye
due to a large pigmented macular scar, the Board observes
that there is no evidence of record which suggests that the
veteran incurred such right eye disability due to any
incident of service. Indeed, the service medical records are
negative for any complaint or finding of an eye disability,
and the veteran's distant vision was noted to be 20/20 in
both eyes on examination for separation from service.
Rather, decreased vision of the right eye was initially
demonstrated years after service. In the absence of
continuity of demonstration, this is too remote from service
to be reasonably related to service. Additionally, the Board
notes that the veteran served in Vietnam during the period
which affords him the presumption of exposure to herbicides
in service. However, there has been no demonstration of an
eye disability as a result of a disease listed under 38
C.F.R. § 3.309(e). Moreover, the record does not contain a
competent clinical opinion that relates his current right eye
disability to service. Although, the veteran asserts that
his current eye disability is due to the close proximity of
his eye to the artillery that he fired in service, he has not
provided any competent medical evidence that supports his
contention. As a layman, he is not competent to provide an
opinion requiring medical knowledge, such as a question of
medical causation. Espiritu v. Derwinski, 2 Vet. App. 492
(1992). The medical evidence of record is of greater
probative value than the veteran's statements in support of
his claim. Thus, the Board finds that the preponderance of
the evidence is against the veteran's claim for service
connection for an eye disability on a direct incurrence
basis.
2. Secondary Service Connection- Eye Disability
The Board also finds that service connection for an eye
disability, as secondary to service-connected type-2 diabetes
mellitus is not warranted. In this regard, in order to
establish service connection on a secondary basis, the
evidence must show that (1) a current disability exists and
(2) that the current disability was either caused by or
aggravated by a service-connected disability. The record
reflects that the veteran is currently service-connected for
type-2 diabetes mellitus, as a result of exposure to
herbicides and bilateral hearing loss. There has been no
allegation of , and the record does not reflect any competent
medical evidence to support a finding, that the veteran has
current eye disability as a result of, or due to aggravation
by hearing loss. Indeed, as noted above, the veteran does
not have a current left eye disability. As such, service
connection may not be established for a left eye disability
as secondary to a service-connected disability. While the
record does reflect current right eye decreased vision due to
a large pigmented macular scar, the medical evidence of
record does not establish an etiological relationship between
the veteran's current right eye disability and his service-
connected type-2 diabetes mellitus, to include due to chronic
aggravation. Indeed, in November 1999, a private examiner
after an examination of the veteran, indicated that the
veteran did not have diabetic retinopathy. The record does
not contain a competent medical opinion that relates the
right eye decreased vision and/or macular scarring to the
service-connected diabetes mellitus, to include on the basis
of chronic aggravation. Rather, the only medical evidence of
record is to the effect that the veteran's current eye
disability is not etiologically related to his service-
connected type-2 diabetes mellitus. Thus, the Board
concludes that the preponderance of the evidence is against
the veteran's claim for service connection for an eye
disability due to service-connected disability.
2. Increased Evaluation- Hearing Loss
The veteran asserts that a compensable evaluation is
warranted for his service-connected bilateral hearing loss.
However, the Board observes that the results of the VA
audiometric examination conducted in May 2003 fail to
demonstrate that a compensable evaluation is warranted. In
this regard, under the criteria set forth in the Rating
Schedule, the results of the May 2003 audiometric test reveal
that the veteran has Level I hearing in both the right ear
and left ear. Such findings correspond to a noncompensable
evaluation. Accordingly, the Board finds that the weight of
the evidence is against the veteran's claim for a compensable
initial evaluation for bilateral hearing loss. Accordingly,
a staged compensable rating is not warranted at any time
during the rating period. Fenderson v. West, 12 Vet. App.
119, 126 (1999).
The Board is required to address the issue of entitlement to
an extraschedular rating under 38 C.F.R. § 3.321 only in
cases where the issue is expressly raised by the claimant or
the record before the Board contains evidence of
"exceptional or unusual" circumstances indicating that the
rating schedule may be inadequate to compensate for the
average impairment of earning capacity due to the disability.
See VA O.G.C. Prec. Op. 6-96 (August 16, 1996). In this
case, consideration of an extraschedular rating has not been
expressly raised. Further, the record before the Board does
not contain evidence of "exceptional or unusual"
circumstances that would preclude the use of the regular
rating schedule. 38 C.F.R. § 3.321 (2003).
ORDER
Entitlement to service connection for an eye disability, to
include as secondary to service-connected type-2 diabetes
mellitus, is denied.
Entitlement to a compensable initial evaluation for bilateral
hearing loss disability is denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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